Thursday, 8 December 2011

Nearly half a million asylum seekers in South Africa may lose their right to earn a living or study while their refugee status is being determined after indications that the government plans to amend legislation governing those rights.

An announcement on 23 November that Cabinet is "reviewing" the minimum rights of immigrants, including the right to work and study, was followed by a media briefing two days later at which Mkuseli Apleni, Director General of the Department of Home Affairs, suggested that the asylum seeker system was being abused.

"The right [of asylum seekers] to work and study has created a problem," he said. "People by default are going through the asylum seeker process in order to be able to work, but the majority are economic migrants using a back door."

Apleni noted that South Africa has the largest number of asylum seeker applications in the world. The system needed "streamlining", he said, and an amendment to current legislation would likely be passed in the next legislative year.

Refugee rights groups have reacted to the announcement with alarm. A joint statement by several civil society groups, including the Zimbabwe Exiles Forum, and People Against Suffering, Oppression and Poverty (PASSOP), argues that the review is a precursor to the withdrawal of rights that will "force more asylum seekers underground, thus making them liable to exploitation".

South Africa's 1998 Refugees Act is silent on the question of whether someone who has been issued an asylum seeker permit can work or study while awaiting a decision on their refugee status. An attempt by Home Affairs to expressly prohibit work and study was challenged when a case was brought to court in 2003 by the Cape Town-based Legal Resources Centre (LRC) on behalf of a Zimbabwean woman and her disabled son.

The matter went to the Supreme Court of Appeals, where the judge ruled that freedom to work and study were "an important component of human dignity", and guaranteed by the country's Bill of Rights.

"The judgement was a resounding endorsement of asylum seekers' right to work, and they're obviously trying to override that," said William Kerfoot, the LRC attorney who handled the case.

Asylum seekers, who are not eligible for any kind of social support, often wait years for their applications to be processed, and prohibiting them from working "effectively turned them into criminals or beggars", he commented.

More than half of asylum seeker applications in South Africa are made by Zimbabweans fleeing economic hardship and human rights violations. Very few of them are eventually recognized as refugees, but applying for asylum is often their only legal avenue for remaining in the country.

The resulting flood of applications has created a backlog in the asylum system that the Department of Home Affairs attempted to address in 2009 by introducing a special dispensation to lift the threat of deportation from undocumented Zimbabwean migrants.

In the latter half of 2010, Zimbabwean migrants were given the opportunity to apply for work and study permits, and those already in possession of asylum seeker permits were encouraged to trade them in. Only about 275,000 of the up to 1.5 million Zimbabweans that the International Organization for Migration estimates are living in South Africa participated in the documentation process and many are still waiting for their permits to be issued.

Home Affairs recently resumed the arrest and deportation of undocumented Zimbabweans, and according to news reports about 4,000 have been deported via South Africa's Beitbridge border post to Zimbabwe since early October 2011.

"[The government] has been trying to do something about the asylum system for a long time, but the rhetoric is all about stopping economic migrants from coming in," said Roni Amit, a researcher at the African Centre for Migration and Society at Witwatersrand University in Johannesburg.

"It is true that there are people who are economic migrants who are applying for asylum because they have no other option. If they provide an alternative system that would be an improvement, but they seem to be more concerned about people who are abusing the system than people who are in need of protection and aren't getting it," she said.

Apleni did not provide details of any planned alternative system, but suggested that the amendments would help deal with the backlog and ensure genuine asylum seeker applications were processed more quickly.

"South Africans must feel safe," he told journalists at the media briefing. "If we're not able to control our illegal immigration, people won't feel safe."

Kerfoot interpreted the latest government announcement as further evidence of "an overall harsher regime towards asylum seekers". He pointed to recent amendments to the Immigration Act reducing the time asylum seekers have to report to a refugee reception office after entering the country, as well as the closure of two of seven such offices, one in Johannesburg and another in the city of Port Elizabeth on the south coast.

"All these things are part of the same pattern and it's the wrong way of going about things - it's unconstitutional and it doesn't comply with our refugees act," he told IRIN.

The statement from PASSOP and other refugee rights groups expresses similar concerns about "what now appears a campaign against asylum seekers".